By Justin O’Dell
Starting this Fall, we switched our discussion of Dick and Jane to the topic of divorce. This topic is going to be far ranging and extensive and we will also be looking at various issues from the perspectives of both Dick and of Jane.
We have been looking at the process of hiring and selecting a domestic lawyer to handle a divorce. For this month, we will consider the initial consultation and the expectations of the client and lawyer in that initial meeting.
- Consultations May Not Be Free. This is probably one of the biggest areas of disconnect between the public and family law attorneys. The majority of attorney advertising is done by personal injury law firms and criminal defense firms. Personal injury firms are paid based on a contingent fee, usually one-third to forty percent of the money recovered to the client. Since they do not charge by the hour, these firms almost always offer free consultations. Criminal law is generally handled on a flat fee basis and free consultations are also the norm. Since these firms advertise “free consultations” many people are led to believe that all lawyers offer free consultations. Most domestic lawyers (and general civil lawyers) charge their clients by the hour. If they spent much of their day giving free hours to consultations, they would not have time left over for paying clients. Some family law lawyers have managed to find a way to offer free consultations, but most do not.
- How Much Will This All Cost? One question that is always asked during the initial consult is “How much is this going to cost me?” The reality is that unless you walk in the door with a completed settlement agreement in hand, no one knows and no one can predict. An experienced lawyer can look at the situation and generalize, but even a seasoned veteran attorney would be making nothing more than an educated guess. The degree to which the couple chooses to fight will control the costs. More important than “how much will this cost me?” a better question for your lawyer is “How do we keep costs under control on our end?” There are a lot of aspects of divorce litigation that are optional, even if perhaps helpful. For example, Jane might tell her lawyer that “I think Dick has hidden money.” Jane’s lawyer can hire a forensic accountant to investigate. However, if Dick is only earning $40,000 per year and the parties are living paycheck to paycheck, the most that Dick could likely squirrel away would be a few hundred or even a few thousand dollars. Is it worth spending $5000 or more to try and find such a small sum? Alternatively, Dick may have concerns that Jane has started seeing a new man since he and Jane separated. Is it really worth spending thousands of dollars in discovery related to this new relationship, if it ultimately will have little bearing on the outcome? The client and attorney should quickly try and develop a consensus about the overall plan for the divorce and discuss the various aspects of the case that need to be proven and spend resources and finances accordingly.
- The Retainer & Billing Process. Most domestic attorneys work on a retainer. Many clients do not get an adequate explanation of the retainer in their initial consultation. Most attorneys bill incrementally (in tenths of an hour). Many clients do not get an adequate explanation of incremental billing in their initial consultation. Some lawyers charge an initial retainer ($2,500.00 or $5,000.00), draw down against that retainer on a monthly bill and require that the retainer account be reinstated to that level each and every month. Other lawyers will require the amount to be reinstated only when it hits zero. For billing purposes, some lawyers bill in minimal increments of six or twelve minutes. This means that a quick phone call or e-mail could be charged for that minimum. It is important in the initial consultation that both the lawyer and the client have a clear understanding of how the relationship will be charged.
- How Will It Turn Out? Most clients come to a consultation expecting to find out “how this will all turn out?” There are some areas where the domestic lawyer can offer opinions and thoughts regarding potential outcomes. If certain variables are known (like each spouses’ gross income), then child support is fairly predictable due to Georgia’s Child Support Worksheet and calculator. Other areas of dispute, like alimony, vary from County to County and even from Judge to Judge within a County. These areas are also highly dependent upon the facts of the case and how those facts are presented to the Court. Any prediction is nothing more than an experienced guess. Instead of “how will it turn out?” the better question is “What kind of divorce am I going to have?” The lawyer and client must be on the same page regarding the process of divorce. Does the client want things settled quickly and without fighting (even if the client has to pay or give up more to their spouse)? Does the client have certain issues that are “non-negotiable” like primary custody or protection of non-marital property?” The more the client has in the “non-negotiable” column, the more likely the divorce will be a fight.
The first meeting with a lawyer is an important one. Most often, the client wishes to receive answers to questions like cost and outcome. The reality is that these issues, though important, are highly variable and highly unpredictable. Rather than focus on costs and outcome, it is critical that both sides gain an understanding about the process of the divorce. Over time, the process will help to control and manage both cost and outcome.